- Meaning of Guardianship (Wilayat)
Guardianship refers to the legal right and duty to care for the person and property of a minor (under 18, or under 21 if a court appoints a guardian).
- Kinds of Guardianship
Muslim law recognizes several distinct types of guardianship:
- Natural Guardian (Wilayat-e-Mala): The legal guardian of the property. The father is the first natural guardian, followed by the executor appointed by the father’s will, then the paternal grandfather, and his executor. The mother is never a natural or legal guardian of property under Muslim law.
- Testamentary Guardian: A guardian appointed through a Will (Wasiyat) by the father or paternal grandfather.
- Guardian Appointed by Court: Under the Guardians and Wards Act, 1890 (GWA), the District Court can appoint a guardian for the welfare of the minor if natural guardians are absent or unfit.
- Guardianship in Marriage (Jabr): The power to give a minor in marriage (Father, then paternal grandfather).
- Guardianship of Person / Custody (Hizanat): The right to physically raise the child. This right belongs primarily to the mother.
- Shia vs. Sunni Differences in Custody (Hizanat)
Aspect | Sunni (Hanafi) Law | Shia (Ithna Ashari) Law |
Mother’s Right to Custody | Male child until the age of 7. Female child until puberty. | Male child until weaning (approx. 2 years). Female child until the age of 7. |
After Mother’s Right Ends | Custody reverts to the Father. | Custody reverts to the Father. |
Loss of Hizanat | Mother loses custody if she marries a “stranger” (outside prohibited degrees to the child). | Mother loses custody if she marries any person. |
- Removal of a Guardian
A guardian can be removed by the Court under Section 39 of the Guardians and Wards Act, 1890 on several grounds:
- Fiduciary abuse or breach of trust regarding the minor’s property.
- Continued failure to perform duties.
- Ill-treatment or neglect of the minor.
- Immoral character or conviction for an offense implying moral turpitude.
- Having an interest adverse to the faithful performance of duties.